Electronic Signature Decision Will Look to Judge Sydney Robins

Judge Sydney Robins’ many decisions included one in the real estate field which epitomizes his brilliant grasp of the law and its evolution in our modern society.

Robins, a judge of the Supreme Court of Ontario and later Ontario’s Court of Appeal, passed away earlier this month. Over a career spanning more than 60 years, Robins served as a judge, lawyer, teacher and role model to thousands of lawyers. I was privileged to work with him when we both served as directors of the Law Society of Upper Canada in recent years.

His scholarship and influence touched virtually all areas of law, but I always recall the case of Rolling v. Willann Investments Ltd., a 1989 decision of a three-judge panel of the Court of Appeal written by Robins.

In 1974, William and Vera Rolling gave Willann Investments the first right to meet any offer, within 72 hours, to submit an identical offer to purchase a property they owned in Collingwood. If the offer was not made in time, the right lapsed.

On May 15, 1989, the Rollings received an offer to buy their land from Sam Spodek. Following receipt of the offer, the lawyers for the Rollings faxed a copy of the Spodek offer to Willann, putting the company on notice that it had 72 hours to match the offer. Eventually, Willann submitted an offer to Rollings to buy the land, but it was sent 29 hours past the deadline.

With two competing offers on the table, the Rollings then applied to court to determine whether Spodek or Willann had a binding agreement.

Willann argued that it was entitled to receive a signed, original copy of the Spodek offer by personal delivery or mail, and not a photocopy or faxed copy. It also argued that the form of delivery, by fax, did not comply with the terms of the 1974 option agreement, which could not have anticipated that fax would become ubiquitous.

When the matter reached the Court of Appeal, Justice Robins wrote that the issue to be decided in the case was whether what was then known as the “telephone transmission of a facsimile of an offer to purchase” amounted to “delivery” under the terms of the option agreement.

At the time it was the custom in the real estate community to deliver copies of agreements by hand and not electronically, and lawyers and real estate agents eagerly awaited the court’s pronouncement on the validity of faxed documents.

A three-judge panel of the Court of Appeal unanimously declared that delivery of notice of the agreement by facsimile was perfectly valid, and that Willann’s option had expired.

In his written decision, Justice Robins wrote, “Where technological advances have been made which facilitate communications and expedite the transmission of documents we see no reason why they should not be utilized. Indeed, they should be encouraged and approved.

“Nothing is to be gained in the circumstances of this case in requiring an attendance at Willann’s offices to deliver the documents, and Willann suffered no prejudice by reason of the procedure followed. In our opinion, the transmission of a facsimile of the offer for the purpose of effecting delivery is not in violation of the option agreement.”

From that day on, signed contracts could be exchanged by fax without any doubt as to whether what was essentially a photograph of a signature was valid and binding.

This decision paved the way for today’s common practice of exchanging signed agreements by emailing scanned copies.

The industry today is struggling to establish a protocol for attaching electronic signatures to purchase agreements. When that puzzle is finally solved, it will rely on the wisdom and the foresight of Sydney Robins.

Bob Aaron is a Toronto real estate lawyer and chair of the Tarion consumer advisory council. He can be reached at bob@aaron.ca . Visit his website at aaron.ca.